Government Contracting and Public Procurement

Fairness, equitability, transparency, competitiveness and cost-effectiveness are the guiding principles, required by the Constitution in relation to all public procurement in South Africa.

We have had many successes in guiding both public and private sector clients through the complex regulatory regime of public procurement processes. We also advise corporate clients and government bodies on the application and interpretation of laws and on administrative action.

On the public sector side, we assist with the design and implementation of fair tender processes that meet the stipulated constitutional principles.

On the private sector side we advise clients on the procurement of goods and services by organs of state and help them challenge tender processes that do not meet constitutional standards.

We regularly represent clients in proceedings before statutory bodies that regulate diverse areas of economic and social activity. Our collective expertise in constitutional and administrative law makes us leading practitioners in judicial review proceedings.

A significant area of our work involves advising clients on the procurement of goods and services by organs of state. We have assisted public sector clients to design and implement procurement processes which comply with the legal requirements and helped private sector clients to challenge procurement processes which fall foul of these requirements.

Chambers and Partners, 2022

‘notable expertise in … public procurement disputes’

‘proficiency in power purchase agreements and PPP construction’

Legal 500, 2021

‘Public law cases are another forte for the team’

• We assisted the Airports Company of South Africa to defend its procurement decision not to appoint security service providers to its panel. The aggrieved service providers brought an urgent application to stop the implementation of the panel, as well as a further application to review and set aside the decision not to appoint them to the panel.

• Transnet on the:

  • privatisation of its Pan-African rail concession subsidiary, Comezar;
  • privatisation of Freight Dynamics;
  • privatisation of Transwerk;
  • privatisation and restructuring of state assets and the disposal of certain non-core assets, including the proposed disposal of the Carlton Centre in 2008 and the proposed disposal of the Outeniqua Choo- Tjoe in 2009/ 2010;
  • proposed privatisation of Spoornet (which spanned passenger rail services and general freight business at the time); and
  • proposed concessioning of the Blue Train.

• The SBC/ Telekom Malaysia Consortium on the acquisition and subsequent disposal of 30% of Telkom in South Africa and in relation to the Telkom IPO.

• The Port of Singapore in the second attempt to privatise Portnet (now the Port Authority of South Africa).

• Hutchison Port Holdings of Hong Kong on the privatisation of the container terminal at the Port of Toamasina, including a full contractual and documentary due diligence, legal risk analysis and review of real estate and other security, as well as advice relating to negotiation strategy with the government and its agencies.

• Botswana Telecommunications Corporation in respect of its proposed privatisation in 2006, including the preparation of draft legislation in this regard.

• Various state-owned entities on the application of the Preferential Procurement Policy Framework Act, 2000 to their operations and assisting in the design of preferential procurement policies.

• The City of Johannesburg on the unbundling of municipal owned assets.

• Telecommunications and broadband companies on various disputes with municipal entities with regard to the use of infrastructure and procurement principles, including settling a long running dispute between the City of Johannesburg and a major supplier to the City of Johannesburg.

• The state party, National Treasury, lenders, sponsors and/ or concessionaires on the regulatory and procurement aspects of public private partnerships, including the Gautrain Project, Prisons Projects and State Accommodation Projects.

• Successfully acted for Hall Longmore (a member of the Barnes Group) in a number of public procurement disputes involving municipalities and water boards such as Rand Water and Sedibeng Water (total value of the contracts more than R2billion).  Our clients challenged certain public procurement awards which were made and in turn other contractors challenged awards made to our clients (we refer to it as the Great Pipeline War of 2016).  All involved urgent interdict proceedings and we were successful in all of these, both in obtaining interdicts and defending them as applicable.  Some of the judicial review proceedings are underway, we have successfully settled one and one which we opposed was not pursued by the applicant. 

• Munitoria PPP Consortium, the private party consortium that (in 2015) successfully reached financial close for the City of Tshwane metropolitan office accommodation, on the procurement approval processes and Municipal Finance Management Act, 2003 principles applicable to the financing, design, construction and facilities management concession for a new head office for the City of Tshwane, including participating in the negotiation of final concession and project agreements and negotiating and settling the financing agreements.

• Eskom Holdings SOC Ltd, the state electricity provider, on all aspects of the development, construction and procurement processes for the Medupi (6000MW) and Kusile (6000MW) coal fired power stations, as well as in relation to the successful defence of the high court review proceedings relating to decision-making for the coal fired power stations.

• The Department of Energy and the National Treasury, who are running a ground-breaking independent power producer procurement process for renewable energy, baseload coal and baseload gas including imported LNG in South Africa. Our advice covered all aspects of the design and implementation of the process, the drafting of the procurement process documents, the implementation of the process, as well as the evaluation of bids and the negotiation with preferred bidders.

• The Department of Energy, which is running a national solar water heater programme for the supply, installation and maintenance of 1.75 million solar water heater systems as well as the repair of existing solar water heater systems in residential homes throughout the country, on all aspects of the design and implementation of the process, the drafting of the procurement process documents, the implementation of the process, as well as assisting with any challenges to the decision-making process